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FedEx Fee Fight Packs $25,000 Sanction
The Recorder
May 29, 2008
A San Francisco plaintiffs lawyer is facing $25,000 in sanctions for making allegedly false statements in a fee fight over a FedEx bias suit.
Waukeen McCoy submitted billing records that his office formulated after the fact, according to a recommendation from Special Master Edward Swanson filed late Thursday. McCoy also deliberately did not produce documents that had been requested, the special master found.
"In sum, McCoy, under penalty of perjury, materially and repeatedly misrepresented the nature of the documents submitted to the Court in support of his request for over two million dollars in attorney fees and made no effort to correct his misrepresentations in a timely manner," Swanson wrote. "This conduct constitutes bad faith and is worthy of the Court's sanction."
U.S. District Judge Susan Illston ultimately will review the sanctions recommendation.
McCoy vehemently disputes Swanson's account. Though the plaintiffs lawyer was traveling Friday and said he had not yet read the recommendation, based on an associate's summary, McCoy said Swanson went way too far.
"I have not perjured myself in any form whatsoever," McCoy said. "For him to even get close to that is amazing to me."
The plaintiffs lawyer won three discrimination verdicts against FedEx Corp., the last of which came in April 2007. In the ensuing battle over legal fees, McCoy's previous co-counsel Kay McKenzie Parker argued she was entitled to a portion of the money. Parker was dropped from the case before trial, and McCoy disputes her fee claim.
But FedEx also raised a stink over the documentation McCoy submitted to bolster his own attorney fees. Among its complaints, FedEx pointed out that McCoy charged for 23.5 hours in a day, and billed for responding to a summary judgment motion five months before the motion was filed. According to McCoy, the former was a typo, and the wrong docket number had been put on the summary judgment billing entry.
According to Swanson, McCoy stated under oath that his fee petitions were based on contemporaneous records. "That was false," Swanson wrote. "Furthermore, the truth of the matter did not come to light because McCoy confessed his error."
It was only after FedEx deposed an associate at McCoy's firm, Aldon Bolanos, that Swanson says he learned McCoy orchestrated the fee petitions after the fact using a set of "ground rules." For example, for every opposition to summary judgment, the associate was instructed to calculate full billing days during the two weeks leading up to filing.
McCoy also showed Bolanos real billing records, and said they would not be produced to Swanson. Once brought forward by Bolanos, those records contradicted the fee petitions, the special master found.
McCoy maintains Swanson should have just reduced his fee petitions if he thought there were problems. McCoy claims Swanson is retaliating against him because of his attempt to have him removed as special master.
Last fall, McCoy alleged an improper ex parte communication between Swanson and Bolanos, and said Swanson had a conflict because he was also serving as an expert witness in prison litigation involving Parker's lawyers at Rosen, Bien & Galvan. But Illston found Swanson did nothing improper, and she sharply scolded McCoy for filing his removal request.
"This is how he pays me back," McCoy said of Swanson.
